Re Latitude Fisheries Pty Ltd; John Albert Boschetti and Julia Ellen Boschetti v the Honourable Simon Findlay Crean, Minister of Primary Industry and Energy of the Commonwealth of Australia [1992] FCA 385

Re Latitude Fisheries Pty Ltd; John Albert Boschetti and Julia Ellen Boschetti v the Honourable Simon Findlay Crean, Minister of Primary Industry and Energy of the Commonwealth of Australia [1992] FCA 385 - FCA 1992 case summary — Zoe

[52]

"7B(1) The Minister may, by instrument in writing,

determine a plan of management for a fishery in

proclaimed waters.

(2) A plan of management for a fishery shall set

out -

(a) the objective of the plan of management;

and

(b) measures by which the objective is to be

attained.

(3) Without limiting the generality of sub-section

(2), the Minister may, in a plan of management for a

fishery-

(a) determine the manner in which the fishing

capacity of the fishery is to be measured;

and

(b) determine the fishing capacity, measured

in that manner, permitted for the fishery.

(4) Without limiting the generality of sub-section

(2), a plan of management for a fishery may make

provision for and in relation to-

(a) the granting of licences under sub-sections 9(2) and (3)

in relation to the fishery;

(b) the conditions to which licences granted under

sub-sections 9(2) and (3) in relation to the fishery are

to be subject; and

(c) the duration, transfer, renewal and

variation of licences granted under sub-sections

9(2) and (3) in relation to the fishery.

(5) Where, in a plan of management for a fishery,

the Minister determines the fishing capacity permitted

for the fishery, then, without limiting the generality

of sub-section (2), the plan of management may make

provision for and in relation to-

(a) the division of the fishing capacity

permitted for the fishery into units (in

this section referred to as "units of

fishing capacity");

(b) the allocation to persons of units of

fishing capacity in the fishery;

(c) the assignment of units of fishing

capacity to boats, and the holding, and

cessation of holding, of units of fishing

capacity in relation to boats;

(d) requiring units of fishing capacity to be

held in relation to boats;

(e) the determination of the number of units

of fishing capacity to be held in relation

to boats;

(f) the holding of units of fishing capacity

that are not assigned to a boat, including

the number of such units of fishing

capacity that may be held by a person and

the period during which such units of

fishing capacity may be held;

(g) the duration, variation, re-assignment,

transfer, surrender, replacement, renewal

of allocation, suspension and cancellation

of units of fishing capacity;

(h) the recording of the allocation,

assignment, holding, cessation of holding,

variation, re-assignment, transfer,

surrender, replacement, renewal of

allocation, suspension and cancellation of

units of fishing capacity and the manner

in which such recording is to be

evidenced, including the issue, recall and

replacement of certificates and other

documents evidencing such recording; and

(j) the reconsideration of decisions made

under the plan of management."

[105]

"Fisheries Notice No.203

MAXIMUM HEADROPE LENGTHS IN NORTHERN PRAWN FISHERY

I, JOHN CHARLES KERIN, the Minister of State for

Primary Industries and Energy, hereby

(a) provide that in this notice:

'area of the managed fishery' has the same

meaning as in the NPF Plan;

'Class A units' has the same meaning as in the NPF Plan;

'headrope length' in relation to an otter

trawl net, means the distance between the

outermost points at which the meshes of

the trawl are attached to the headrope;

'prawns' has the same meaning as in the

NPF Plan;

'the Act' means the Fisheries Act 1952;

and

'the NPF Plan' means the determination

made under sub-section 7B(1) of the Act

and known as Plan of Management No. 3,

Northern Prawn Fishery Management Plan as

amended and in force from time to time;

(b) pursuant to paragraph 8(1)(c) of the Act,

prohibit the taking of prawns with a boat

of a kind described in an item in column 1

of the Schedule and pursuant to paragraph

8(2) of the Act, exempt from this

prohibition the taking of prawns with the

use of an otter trawl net the headrope

length of which does not exceed the length

specified in column 2 of the Schedule

adjacent to that item; and

(c) pursuant to paragraph 8(4B)(a) of the Act,

specify the area of the managed fishery

excluding the area specified in Schedule 1

of Fisheries Notice No. 173 (published in

Gazette No. 5614 on 28 November 1986) as

in force from time to time, as the area in

respect of which the prohibition contained

in paragraph (b) of this notice is to have

effect.

SCHEDULE

Column 1 Column 2

Permissible

headrope

Kind of Boat length

1. A boat to which 375 or fewer 16.5 metres

Class A units are assigned and

which is rigged to operate two

otter trawl nets.

2. A boat to which 375 or fewer 33 metres

Class A units are assigned and

which is rigged to operate one

otter trawl net.

3. A boat to which more than 375 25.65 metres

Class A units are assigned to and

which is rigged to operate two

otter trawl nets.

4. A boat to which more than 375 51.3 metres

Class A units are assigned and

which is rigged to operate one

otter trawl net.

Dated this fifteenth day of February 1988

JOHN KERIN

Minister of State

for Primary Industries and Energy"

[107]

"1. This notice may be cited as Fisheries Notice No.

NPF 9.

.

.

.

INTERPRETATION

4.1 In this notice, unless the contrary

intention appears, words have the same

meanings as in the Fisheries Act 1952 and:

.

.

.

'headrope length", in relation to an otter trawl net,

means the distance between the outermost

points at which the meshes of the trawl

are attached to the headrope, measured

when the rope is stretched taut and the

net is wet;

.

.

.

PROHIBITION ON EQUIPMENT FOR TAKING PRAWNS

5. Pursuant to paragraph 8(1)(c) of the Act,

the taking of prawns is prohibited in the

area described in paragraph 10 of this

notice with the use of:

(i) a purse-seine net, a ring net, a pursed ring

net, a lampara net, a pursed lampara net or any

other net that is so constructed as to be

capable of being used, in the course of taking

fish, to surround the fish in a like manner to

the manner in which any of those nets are used

to surround fish;

(ii) an otter try-net or beam trawl net that exceeds

3.6 metres measured between the outermost

points at which the meshes of the net are

attached to the headrope or beam; or

(iii) an otter trawl:

(A) that has fly ropes fitted to it:

if any fly rope is attached to the headrope of

a trawl at a point between the outermost

attachments of the meshes of the trawl to that

headrope;

(B) that is joined at any point to other equipment

for taking fish that is, when the equipment is

being used for fishing, in the water.

6. Pursuant to paragraph 8(1)(f) of the Act,

the use at any one time from a boat, in

the area described in paragraph 10 of this

notice of a quantity of equipment for

taking prawns that exceeds:

(i) two single otter trawls and one only of either

otter try-net or beam trawl; or

(ii) one twin-rig or double otter trawl and one only

of either otter try-net or beam trawl,

is prohibited.

.

.

.

EXEMPTION FROM PROHIBITION

8. Pursuant to paragraph 8(2)(d) of the Act,

exempt from the prohibitions in paragraphs

5 and 6 on the taking of prawns with the

use of a boat using an otter trawl net the

headrope length of which does not exceed

the length specified in column 2 of the

Schedule 1 adjacent to the kind of boat in

column 1.

.

.

.

10. Pursuant to paragraph 8(4B)(a), specify

that paragraphs 5 and 6 of this notice

apply to the areas of the managed fishery

specified in Schedule 2 of the NPF Plan."

[131]

38. The legal relationship between the fisheries notices and the Plan depends in part upon the interaction of the Plan and the Fisheries Act 1952. The Plan is established by a ministerial determination effected by instrument in writing (s.7B(1)). By virtue of s.7C(3) the determination attracts the application of provisions of the Acts Interpretation Act 1901 relating to the tabling, disallowance, operative dates and repeal of regulations. It is also deemed to be an order made by the Minister for the purposes of s.5 of the Evidence Act 1905 (s.7C(5)). Evidence of its making can therefore be given by production of the Gazette purporting to contain it or of a copy certified by the Minister. It is deemed to be an enactment for the purposes of the Administrative Appeals Tribunal Act 1975 (s.7C(6)). A determination under s.7B is not a policy statement. In Secretary, Department of Primary Industries and Energy v. Collins [1992] FCA 61; (1992) 106 ALR 351 at 356, Heerey J. observed that a Plan of Management stands on quite a different legal footing from policy statements or guidelines. I respectfully agree with his Honour's view in this regard which accords with the opinion I expressed in Azevedo v. Secretary Department of Primary Industries and Energy [1992] FCA 84; (1992) 106 ALR 683 at 698. On the other hand a determination is not a species of regulation or by-law creating rights and duties by virtue of a general statutory authority delegating a law making power to the Minister. Whether it falls within the wider concept of delegated legislation at all may be debateable. In Pearce - Delegated Legislation in Australia and New Zealand (1977) it is suggested that delegated legislation can be defined as "instruments that lay down general rules of conduct affecting the community at large which have been made by a body expressly authorized so to act by an Act of parliament" (pp 1-2). Accepting the limitations of that definition and the uncertain boundaries of executive and legislative activity which are pointed out in the text, it may be doubtful whether a determination under s.7B of the Fisheries Act 1952 is properly described as delegated legislation. The provisions of the Act by which it is deemed to be an order for one purpose and an enactment for another, and the application of provisions of the Acts Interpretation Act 1901 specifically relating to regulations suggest that while the determination is so regarded for some purposes, that characterisation is not of general application. On the other hand, in Austral Fisheries Pty Ltd v. The Minister for Primary Industries and Energy (unrep Fed Ct 28/7/1992 O'Loughlin J. Library No. 529/1992), O'Loughlin J. favoured the classification of Plans of Management as a species of legislation and held that the power conferred on the Minister by s.7B was of a legislative character. In the Second Reading Speech for the Fisheries Legislation Amendment Act 1985 by which s.7B was introduced into the Fisheries Act 1952 it was said that management plans would "have the force of law" (H of R Deb 17.4.85 p 1289). The problem of classification perhaps points up the difficulty adverted to by Professor Pearce in separating legislative and executive action where the two areas of official conduct meet. In the end, I think the better course in most cases is probably to eschew the taxonomic debate and focus upon identification of the rights, duties, powers and privileges which arise as a result of the determination of the Plan.

At a glance

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Before

Source

Judgment (142 paragraphs)

Re Latitude Fisheries Pty Ltd; John Albert Boschetti and Julia Ellen Boschetti v the Honourable Simon Findlay Crean, Minister of Primary Industry and Energy of the Commonwealth of Australia [1992] FCA 385 (12 August 1992)

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Legislation Cited (16)

Cases Cited (5)